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2014 (6) TMI 620 - CESTAT AHMEDABADDemand of duty - Incomplete RG-1 Register - shortage of physical stock of final product - Seizure of goods - Held that:- red diary seized has not been challenged; its recovery has not been challenged; the original adjudicating authority had made specific observations about parallel invoices and at least in the case of one customer viz. M/s. Prakash Tyre Works, Kolhapur, there is no challenge to the observation that there were parallel invoices; other specific instances brought out by the original adjudicating authority have also not been challenged. The above facts brought out would show that neither side has been able to show as to what exactly is the quantum of clandestine removal. The assessee should have submitted a statement showing the exact quantity in the red diary which was shown as cleared as per statutory records and arrived at the quantum of differential duty which they have not done. Department also in spite of the statement of Shri Mustafa Khan that certain portion of the red diary have been cleared on payment of duty and further he was not admitting the entire clearances in red diary as clandestine removal, no efforts have been made to quantify the exact quantum of tread rubber cleared without payment of duty. In such a situation, both sides have failed to make out a case in their favour in accordance with their submissions - It will be unfair on my part to either uphold the entire demand or to adjourn the matter for further quantification in view of the fact that the case relates to the year 1995-96 and the matter is coming before this Tribunal for second time. Under these circumstances, keeping the total amount involved for consideration and the facts as discussed above, in my opinion, it would be appropriate if the assessee is required to pay the duty on the quantity found short at the time of visit of the officers - Decided partly against assessee.
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